The opinion of the court was delivered by: Garaufis, United States District Judge.
On April 10, 2006, the United States ("Government") notified defendants Vincent Basciano ("Basciano") and Patrick DeFilippo ("DeFilippo"), pursuant to Brady v. Maryland, 373 U.S. 83 (1963), that the Government had just located an F.B.I. 302*fn1 from 1999 suggesting that DeFilippo was not involved in the 1999 murder of Gerlando Sciascia ("Sciascia") for which he is currently being tried. (Gov't Ltr. of Apr. 10, 2006.) The F.B.I. 302 stated that a confidential informant had told the F.B.I. in 1999 that co-defendant Basciano, who is not charged in the Sciascia murder, was in fact responsible. (Id.) On April 11, 2006, upon receiving the Government's Brady disclosure, DeFilippo renewed his motion for severance. (Trial Transcript ("Trial Tr.") at 7758; see also Memorandum & Order of December 23, 2005 ("Severance M&O").)*fn2
The court takes this situation very seriously. I am extremely discomfitted by the Government's disclosure of Brady materials in the seventh week of this trial and only a few business days before the Government plans to rest its case. In response to this disclosure, on April 12, 2006, the court ordered the Government to further investigate the confidential informant ("Confidential Informant" or "CI") who supplied the information in the 302 to the F.B.I. (Trial Tr. at 7763-64.) At DeFilippo's request, I interviewed Confidential Informant on April 13, 2006, using many of the questions suggested by DeFilippo's attorney (DeFilippo Ltr. of Apr. 12, 2006), as well as my own. Based on the information obtained at that interview, and in accordance with the relevant law, I find that a severance is not warranted at this time. This M&O assumes familiarity with the facts and prior decisions in this case.
Severance is justified "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt." Zafiro v. United States, 506 U.S. 534, 539 (1993). The "denial of a severance motion should be reversed only when a defendant can show prejudice so severe as to amount to a denial of a constitutionally fair trial, or so severe that his conviction constituted a miscarriage of justice." United States v. Blount, 291 F.3d 201, 209 (2d Cir. 2002) (internal citations and quotations omitted). Here I consider whether any of DeFilippo's specific trial rights have been compromised.
DeFilippo's trial attorney has previously stated to the court that he has chosen, as a strategic matter, not to mount an antagonistic defense despite his contention that such a defense would be in his client's best interest in a severed trial. (Trial Tr. at 3724, 7758.) Notwithstanding the decision of DeFilippo's counsel, I now consider whether severance would be warranted were DeFilippo to engage in an antagonistic defense at this point in the trial, based on the new information presented by Confidential Informant's 302. In doing so, I also reconsider my severance decision of December 2005 in light of the new evidence.
Severance based on antagonistic defenses can be based on a theory of mutually antagonistic defense or a theory of antagonism reaching the essence of the defenses. "It is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Zafiro, 506 U.S. at 540. "[D]efenses must conflict to the point of being so irreconcilable as to be mutually exclusive before we will find such prejudice as denies defendants a fair trial." United States v. Cardacia, 951 F.2d 474, 484 (2d Cir. 1991.) "Defenses are mutually exclusive or irreconcilable if, in order to accept the defense of one defendant, the jury must of necessity convict a second defendant." Id. This is not such a case, as Basciano is not charged with the Sciascia murder. Hence, there are no grounds to sever based on mutually antagonistic defenses, as mere finger pointing is not sufficient for severance. United States v. Haynes, 16 F.3d 29, 31-32 (2d Cir. 1994)
Antagonistic defenses can also merit severance where "antagonism at the essence of the defenses prevails to such a degree -- even without being mutually exclusive -- that the jury unjustifiably infers that the conflict alone indicated that both defendants were guilty." Cardacia, 951 F.2d at 484 (emphasis in original). The court thus considers whether DeFilippo's Sixth Amendment right to present a defense is compromised by a joint trial, given new evidence suggesting Basciano's involvement in the murder. I do not find the antagonism to reach this level. Certainly, at this point in the trial, the "essence" of the defense could not be implicated where there has been no development of antagonistic defense theories during for the first two months of trial. Moreover, I do not find that there is anything in the new evidence contained in the 302 that changes the reasoning of my 2005 Severance M&O that this evidence does not lead to a defense the "essence" of which would require severance.
I now consider the possibility that DeFilippo's right to present a defense and his due process rights were compromised by the Government's untimely disclosure of Confidential Informant's 302. This claim requires an analysis under Brady. "There are three components of a true Brady violation:  The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;  that evidence must have been suppressed by the State, either willfully or inadvertently; and  prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also, e.g., Banks v. Dretke, 540 U.S. 668, 691 (2004); United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004).
On January 3, 2006, the court issued a lengthy M&O dealing with a number of discovery and pre-trial issues, including the Government's Brady obligations. At the time, I denied the Defendants' motion to order production of Brady materials, based on the Government's representations that it was aware of its obligations and was fulfilling them. I wrote:
With less than a month until trial the Government should share any remaining Brady information of which it is aware. The time is rapidly drawing short for the defense to prepare its case using such material. The court assumes that the Government isdisclosing information in compliance with its obligations under Brady and its representations to the court, and does not believe an order is necessary for further compliance. Nonetheless, I use this opportunity to remind the Government that any failure to meet its obligations will have serious consequences. (M&O of Jan. 3, 2006, at 16.)
The information in CI's 302 appears to be clearly exculpatory and favorable to DeFilippo. (Trial Tr. at 7760.) Although there is no bad faith on the part of the Government alleged in this matter, the exculpatory information provided by Confidential Informant has been in the F.B.I.'s possession since 1999. The Government was furthermore on notice of its obligations to immediately turn over any remaining Brady material ...